Legal Opinions

Opinion No. 1678

Subject:

DEFENCE WHETHER MEMBERS OF AUSTRALIAN MILITARY FORCES CAN BE REQUIRED TO SERVE IN NAURU WITHOUT THEIR CONSENT: WHETHER NAURU IS TERRITORY UNDER AUTHORITY OF COMMONWEALTH FOR PURPOSES OF DEFENCE ACT s 49: TERRITORY GOVERNED BY COMMONWEALTH UNDER MANDATE: APPLICATION OF DEFENCE ACT TO MEMBERS OF MILITARY FORCES SERVING IN NAURU

DEFENCE ACT 1903 ss 5A, 49, 55: ACTS INTERPRETATION ACT 1901 ss 2, 17(p): NAURU ISLAND AGREEMENT ACT 1932 Schedule AGREEMENT cl 1: MANDATE FOR THE ADMINISTRATION OF THE FORMER GERMAN ISLAND OF NAURU (PLEASANT ISLAND) CONFERRED UPON HIS BRITANNIC MAJESTY BY THE COUNCIL OF THE LEAGUE OF NATIONS done at Geneva on 17 December 1920 [1923] ATS 11cl 6: AGREEMENT BETWEEN HIS MAJESTY’S GOVERNMENT IN LONDON AND THE GOVERNMENT OF THE COMMONWEALTH OF AUSTRALIA AND THE GOVERNMENT OF THE DOMINION OF NEW ZEALAND CONCERNING THE MANDATE FOR THE ADMINISTRATION OF THE ISLAND OF NAURU done at London on 2 July 1919 [1920] ATS 16: MANDATE FOR THE ADMINISTRATION OF THE GERMAN POSSESSIONS IN THE PACIFIC OCEAN SITUATED SOUTH OF THE EQUATOR OTHER THAN GERMAN SAMOA AND NAURU, CONFERRED UPON HIS BRITANNIC MAJESTY FOR AND ON BEHALF OF THE COMMONWEALTH OF AUSTRALIA, CONFIRMED AND DEFINED BY THE COUNCIL OF THE LEAGUE OF NATIONS done at Geneva on 17 December 1920 [1920] ATS 2

Date:

21 February 1941

Client:

The Secretary, Department of the Army

Related Opinion:

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The Secretary, Department of the Army, has forwarded the following memorandum to me for advice:

I desire to request your opinion on the question whether members of the Australian Military Forces can be required to serve in the Island of Nauru without their consent. Your attention is invited with reference to this question to section 49 of the Defence Act 1903–1939; section 17(p) of the Acts Interpretation Act 1901–1937; the Nauru Island Agreement Act 1932 and clause 1. of the Agreement in the Schedule thereto; Halsbury’s Laws of England, 2nd Ed. Vol. 31 p. 477, where it appears to be indicated that the natural and ordinary meaning of a particular word or phrase is not restricted by a definition section; Jolley v Mainka 1933, 49 C.L.R. 22 H.C., where it appears to have been held that New Guinea was a ‘Territory under the control of the Commonwealth’ within the natural and ordinary meaning of that phrase.

It would be appreciated if this matter could be treated as being one of extreme urgency.

The question for advice turns upon the proper construction of section 49 of the Defence Act 1903–1939, which reads as follows:

49. Members of the Defence Force who are members of the Military Forces shall not be required, unless they voluntarily agree to do so, to serve beyond the limits of the Commonwealth and those of any Territory under the authority of the Commonwealth.

In particular, the question is whether Nauru is a Territory under the authority of the Commonwealth for the purposes of section 49.

Section 17 of the Acts Interpretation Act 1901–1937 provides that in any Act, unless the contrary intention appears, ‘Territory under the authority of the Commonwealth’ includes any Territory governed by the Commonwealth under a Mandate. Section 2 of the same Act provides that the Act is to apply to all Acts of the Parliament. There does not appear to be any ‘contrary intention’ in section 49 of the Defence Act and, in my view, it is quite clear that the definition provided by section 17 of the Acts Interpretation Act applies to section 49.

It is therefore necessary to consider whether Nauru is a Territory governed by the Commonwealth under a Mandate. I think it may be accepted that it is a Territory and that it is governed under a Mandate, but it is not so clear whether it is governed by the Commonwealth.

The terms of the Mandate for Nauru provide that the Mandate is conferred upon ‘His Britannic Majesty’ and that the mandatory shall have full power of administration and legislation over the territory as an integral portion of his territory. By way of contrast, reference may be made to the terms of the Mandate for New Guinea, which provide that the Mandate is conferred upon ‘His Britannic Majesty for and on behalf of the Government of the Commonwealth of Australia’, and that the mandatory shall have full power of administration and legislation over the territory as an integral portion of the Commonwealth of Australia and may apply the laws of the Commonwealth of Australia to the territory. The Mandates for South West Africa and for Samoa are similar terms to those of the New Guinea Mandate.

His Britannic Majesty is the titular head of the British Empire and also of each of the self-governing Dominions and it would, in my view, have been competent for him to have exercised the Mandate without any reference to any of the Dominions. However, an agreement concerning the exercise of the Mandate has been entered into between the Governments most interested in the Island, namely the Governments of the United Kingdom, Australia and New Zealand. The agreement recites that a Mandate for the administration of the Island has been conferred upon the British Empire and goes on to provide that the administration of the Island shall be vested in an Administrator, who, at the present time, is appointed in such manner as the three Governments decide. The present Administrator was appointed by the Commonwealth Government. The Administrator has power to make Ordinances for the peace, order and good government of the Island but under a supplementary agreement any Ordinances so made are subjected to confirmation or disallowance by the Governor-General in Council and the Administrator is required to conform to the instructions of the Government.

The result is that, so long as the Administrator is appointed by the Commonwealth, the Commonwealth has effective control of the administration and legislation of Nauru. There is therefore a good deal to be said for the view that at the present time the Territory of Nauru is, within the meaning of section 17 of the Acts Interpretation Act, a Territory ‘governed by the Commonwealth under a Mandate’ even though the Mandate does not in terms refer to the Commonwealth.

On the other hand, the primary responsibility for the fulfilment of the terms of the Mandate rests upon the British Government. The annual report to the Council of the League of Nations under clause 6 of the Mandate is made by that Government and it would, I think, be to that Government that the League would look for the good government of the Island.

On the whole, although the matter is not free form doubt, I incline to the view that Nauru is a Territory under the authority of the Commonwealth for purposes of section 49 of the Defence Act, but in view of the fact that some doubt exists, it seems to be desirable to obtain the consent of any members of the Military Forces who are to serve in Nauru.

I should add that if Nauru is a ‘Territory under the authority of the Commonwealth’ it is also a ‘Territory of the Commonwealth’ (see Acts Interpretation Act, section 17(p)). It does not follow, however, that the Defence Act extends, under section 5A thereof, to Nauru. The Commonwealth Parliament has no power to extend its laws to Nauru as laws of Nauru and section 5A must be regarded as impliedly qualified accordingly (see Acts Interpretation Act, section 15A). Further, Nauru is not included in the definition of ‘Australia’ in section 4 of the Defence Act.

The Defence Act would, however, apply to members of the Military Forces serving in Nauru, not as a law of Nauru but as a law of the Commonwealth having extra-territorial operation in Nauru. In particular, section 55 would continue to apply to such members of the Military Forces.